1. This second appeal is directed against the orders dated 29-4-1970 and 22-12-1976 passed by the 1st Extra Joint Civil Judge and Controller, Hyderabad, and 4th Additional District Judge, Hyderabad respectively, in Rent Case No. 301/1966 and Civil Appeal No. 100/70 respectively.
2. The facts leading to the filing of the above appeal shortly are that the respondent was transferred the shop in question through P. T. O. Dated 20-5-1965. Upon the transfer of the above shop, the respondent served a notice dated 2-9-1965 on the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). After that on 12-8-1966 the respondent filed ejectment proceeding on the ground of default in payment of the agreed rent i.e. Rs. 100 p. m. And also on account of personal requirement. In the aboveejectment application, it was averred by the respondent that the appellant owned another shop within the same urban area, within the same city. The appellant contested the above application and it was averred by him in his written statement that he never agreed to pay Rs. 100 to the res--pondent's husband, who issued receipts at the rate of Rs. 100 per month, to which the appellant objected to. It was also denied that there was any default on the part of the appellant.
3. On the basis of the above pleadings as many as 6 issues were framed. The learned Rent Controller after recording the evidence and after hearing the parties decided all the issues against the appellant and ordered his ejectment by the aforesaid order dated 29-4-1970. The appellant being aggrieved by the above order filed first appeal, namely, First Appeal No. 70/70 before the District Judge, Hyderabad which was allowed by an order dated 5-11-1910 and the case was remanded to the learned Rent Controller for recording further evidence in the case and then to decide the case on merits. Against the above order, the respondent filed a second appeal, namely, 2nd Appeal No. 61/71. In the High Court which was allowed by the Judgment dated 24-11-1975, whereby the District Judge, Hyderabad was directed to give his findings on all the issues. Upon the remand of the above case, the District Judge, Hyderabad, transferred the same to the 4th Additional District Judge, Hyderabad, who by his aforesaid judgment/order dated 2C-12-1976 maintained the aforesaid learned Rent Controller's order dated 29-4-1970. The appellant being aggrieved by the two orders has filed the present second appeal.
(2) (a) In support of the above second appeal Mr. Faiz Muhammad Soomro, learned counsel for the appellant has urged the following points
(i) That both the courts below erred in holding that the statutory protection of 6 years provided for under section 30 of the Act was not available to the appellant as he owned another shop within the same urban area.
(ii) That in any case the finding of the two Courts below on the question of default is not sustainable for the reason that both the Courts erred in holding that the appellant was liable to pay rent at the alleged agreed rate of Rs. 100 p. m. And not on the basis of the latest assessment carried out by the Excise and Taxation Department, namely, Rs. 70 p. m.
(iii) That the concurrent finding of the two Courts below on the question of the respondent's personal requirement is contrary to the record.
(b) Whereas Mr. Makhdoom A.I Khan learned counsel for the respon--dent has urged the following contentions.
(i) That since there is a concurrent finding of the two Courts below to the effect that the appellant owns a shop within the same urban area the finding of the two Courts below that the statutory protection under section 30 of the Act is not available to the appellant is in accordance with law.
(iii) That the effect of the finding of the two Courts below that the statutory protection of section 30 of the Act is not available to the appellant is that the appellant is liable to pay agreed rent i. e. Rs.
4. 100 per month and not Rs. 70 per month on the basis of the latest assessment.
(iii) That even if it is to be held that the statutory protection of 6 years period under section 30 of the Act was available to the appellant, the above statutory period of 6 years had already expired by the time the ejectment order was maintained by the first appellate Court, and therefore, the two orders in appeal are sustainable.
(iv) That the concurrent finding of the two Courts below on the, question of personal requirement cannot be interfered with by this Court in a second appeal unless it is to be found to be perverse or contrary to the record which is not the case in the instant case.
(3) (a) Reverting to Mr. Soomro's contention that the two Courts below erred in holding that the statutory protection of 6 years provided for section 30 of the Act is .Not available to the appellant, it may be pertinent to refer to above section 30, which reads as follows Section 30. Protection of certain occupants.-(1) Where any person is in possession of any evacuee house, or shop, or has been declared, (on or before the twentieth day of December, 1958), by a Custodian to have tenancy rights from a date prior to the fourteenth day of August, 1974, in any industrial concern, cinema house or, printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which be may, have in that house, shop, industrial concern, cinema house or printing press; be seemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer provided that-
(a) it shall be lawful for the transferee, to charge a rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be for other properties in the locality generally ; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years, and from the industrial concern, cinema house. Or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant--
(i) who has not within three months from the -date of receipt of a notice of demand sent to him by the transferee by registered post (acknow--ledgment due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer or
(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention , of any of the provisions of subsection (3), which ever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship.
(5) (omitted)."
(b) It may be noticed that under the above-quoted section a transferee is entitled to recover rent on the basis of latest assessm ent carried out by the Municipality or local authority. It may further be noticed that under the above-quoted section a transferee of a shop or a house is prohibited from ejecting a tenant of the transferred property for a period of 6 years from the date of transfer if a notice as prescribed in the above section is served within one month, but where a notice is not served within one month as prescribed under the above section, the transferee cannot eject the tenant for a period of 6 years from the date of receipt of such notice, by the tenant. It may also be noticed that the above protection ceases to apply in a case where a tenant fails to pay rent within 3 months from the receipt of notice or after the transfer sub-lets or parts with the possession or commits acts which are destructive or injurious to the property. Nor this protection is available to the tenant of any house or shop who in any urban area within the same town or city owns a house or shop as the case may be. It may also be pertinent to mention that under subsection (4) of the above-quoted section it has been provided that on the expiry of the period mentioned in clause
(b) to subsection (1) or on the contravention of any of the provisions of subsection (3) whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with law for the time being in force relating to such relationship.
(c) Reverting to the first contention of Mr. Soomro, learned counsel for the appellant that both' the Courts below erred in holding that the statutory - protection of 6 years provided in section 30 was not available to the appellant, it may be observed that both the Courts below have held that the appellant owns a godown which is being used as a shop situated at a stone throwing distance from the shop in question in the same Bazar. It has been vehemently urged by Mr., Soomro that the above finding is contrary to record. In support of his above contention he invited my attention to the judgments of the two Courts below, wherein both the Courts have held that Exh. 38-D being the certified copy of P. T. I. In respect of property bearing Nos. F/1125 and F/1126, produced by the respondent does not indicate that there is any shop or godown attached to the above property.
5. This is so, but the matter does not stand concluded. Both the Courts below have relied upon the admission of the appellant (in cross-examination) to the effect that he owns a property bearing Nos. r'-1125, F-1126, F-1127 and F-1128 which is about 600 or c00 paces from the shop in dispute and that the above property contains a godown. Furthermore, the trial Court visited the godown referred to by appellant in his cross-examination and found that in fact it was a shop measuring 9' x 12" and was used as such. It may be observed that Exh. 38-D produced by the respondent did not include the two other Survey Nos. Namely, F-1127 and F-1128 and, therefore, the above P. T.
1. Was not complete. In view of the above admission on the part of the appellant and on the basis of the inspection note, the two Courts below could come to a finding that in fact the appellant owned a shop within the same urban area. It has been urged by Mr. Makhdoom A.I Khan learned counsel for the respondent that once the evidence of both the parties is on record before the Court, the question of burden of proof whittles away and that the Court even on the basis of an admission of a party in cross-examination can arrive at a finding. In support of his above contention he has referred Manaka and others v. Madha Rao and others (AIR 1950 PC 25), the case of Muhammad Bashir v. Mst. Rehmat Bibi and 4 others (1970 SCMR 874) and the case of Mst. Khatoon v. Malla and S others (1974 SCMR 341). It will suffice to observe that in all the above cases, it has been held that the question of onus become irrelevant, immaterial when the entire evidence is before the Court.
6. The above cases, in fact support the learned counsel for the respondent's above contention.
(d) It was next contended by the learned counsel for the appellant that a godown cannot be termed as a shop. On the other hand, it was urged by the learned counsel for the respondent that the term `godown' falls within the definition of a shop. Mr. Makhdoom A.I Khan learned counsel for the respondent in this regard has referred to the case of Muhammad Aslam v. Chief Settlement Commissioner and another (PLD 1967 Lah 375) in which a learned Single Judge has held that "if a shop is constructed with a godown appurtaining to it, the godown under the definition will be a part of the shop, but if the godown alone is constructed without the shop then the godown for the purpose of definition of clause (12) of section 2 will not be attached or appurtenant to a shop and because there does not exist any shop, the godown in possession of a person who uses it for commercial purposes will have to be transferred as a shop".
7. The learned counsel for the respondent has also referred to the definition of `shop' and `store' given in Black's Law Dictionary, 4th Edition, which read as follows "Shop-A building in which goods and merchandise are sold at retail, or where mechanics work, and sometimes keep their products for sale. State v. Morgan 98 N. C. 641, 3 S. E. 927 ; State v. O. Connell, 26 Ind. 267 ; State v. Sprague, 149 Mo. 409, 50 S. W. 901 ; Com. v. Riggs, 14 Gray Mass, 378, 77 Am. Dec.
8. 333 ; Richards v. Ins. Co., 60 Mich 426, 27 N. W. 586. There must be some structure of a more or less permanent character. 6 B. & S. 303.
9. The term is properly applied to a place of manufacture or repair, such as a roundhouse Koacher v.
10. Minneapolls, St. P. & S. S. M. Ry. Co., 122 Mien. 458, 142 N. W. 874, or a building used for repairing automobile parts, gas and oil State v. Garon, 161 La. 867, 109 So. 530, 532. But it is not strictly applicable to a garage, State v. Garon, 158 La. 1014, 105 So. 47, 48, nor to a restaurant, even though the restaurant also engages in the sale of cigars, Debanham v. Short, Tex. Civ. App. 199 S. W. 1147.
11. The word `shop' in its popular as well as legal meaning is not confined to, `workshop', but is a word of various significance, and "store" and `workshop' are both included in it and do not exhaust its meaning. A place kept and used for the sale of goods may be rightly denominated a `shop'.
12. Commonwealth v. Moriarty, 311 Mass. 116, 40 N. E. 2nd 307, 308."
13. "Store".-Any place where goods are deposited and sold by one engaged in buying and selling them. Warburton Beacham Supply Co. v. City of Jackson, 151 Miss 503, 118 So. 606, 6~8. A shop.
14. Midwestern Petroleum Corporation v. State Board of Tax Com'rs, 206 Ind. 688, 187 N. E. 882, 888, 191 N.
15. E.
153. Also Storehouse Webster ; De Wolfe v. Pierce, 196 111 App. 360, 361."
16. He has further referred to the definition of a `godown' given to Law Terms and Phrases by Sardar Muhammad Iqbal Mokal, 1st Edition, page 15 which reads as follows :- "Godown.--a storage, warehouse."
17. It may be noticed that according to the definition of shop given in Black's Law Dictionary a shop may include a store or even a workshop. Apart from the above definition both the Courts below have held that the godown in question has been used as a shop. This is a concurrent finding of fact of the two Courts below. Since the appellant owns a shop within the same urban area the finding of the two Courts below that the statutory protection of 6 years provided for in section 30 of the Act is not available to the appellant, is not available to the appellant, is in accordance with law and, therefore, does not call for any interference by this Court.
(4) (a) Reverting tothe second contention of Mr. Soomro that the finding of the two Courts below on the question of default is not sustainable for the reason that both the Courts below erred in holding .That the appellant was liable to pay rent at the alleged agreed rate at Rs. 100 per month and not on the bkiis of latest assessm ent, namely, Rs. 70 per month, it may be observed that Mr. Soomro invited my attention to Exh. 48-A, which is a certified copy of P: T. I. And also to the testimony of Muhammad Yasin, (a Court witness) Exh.
53. Exh. 48-A indicates,that the gross annual letting value of the shop in question as assessed by the Excise and Taxation Department on 30-6- 1964 was Rs. 840 and the not was Rs. 756. Muhammad Yasin the above Court witness, a clerk from the Office of the Excise and Taxation Department Hyderabad, had produced register of P. T. I.
18. Pertaining to the property in dispute. He has deposed that Exh. 48-A was issued on 29-8-1966 when the assessm ent was Rs. 840 per annum. He has further deposed that this assessment was revised on- the application of the respondent and the annual rent was assessed at Rs. 2,400 and that this revising order was passed on 28-11-1966. Since the present ejectment application was filed on 12- 8-1966 when the annual gross letting value was Rs. 840 the appellant was liable to pay rent at Rs.
19. 70 per month op the basis of the latest assessment then holding the field. Any ex parte revision on 28-11-1966 without notice to the appellant cannot saddle him with .The extra burden. In any case the same was not relevant for the purpose of the present ejectment application. The question which remains to be considered is, what is the effect of the concurrent finding of the two Courts below that in fact the appellant had agreed to pay Rs. 100 per month and that in fact had paid rent at the above rate amounting to Rs. 940 (but Rs. 990 according to the respondent). In my view any alleged agreement in respect of payment of rent in violation of section 30 of the Act cannot be enforced. In this regard, it may be pertinent to refer to the case of E. A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) which it has been held by the Supreme Court that a tenant cannot contract out section 30 of the Act. In this view of the matter the concurrent finding of the two Courts below on the question of default is against the -law. Admittedly there was no default at the time of the filing of the ejectment application on the part of the appellant if the total amount paid by him is adjusted at the rate of Rs, 70 per month, it was vehemently urged by Mr. Makhdoom A.I Khan that as it has been held by the two Courts below that the protection of section 30 of the Act was not available to the appellant he could enter into an agreement with the respondent about the quantum of rent. Whereas it has been urged by Mr. Soomro that even if it is to be held that the protection of 6 years was not available to the appellant, his liability to pay rent remains in terms of section 30 (1) (a) of the Act i. e. On the basis of latest assessment.
(b) Mr. Makhdoom A.I Khan learned counsel for the respondent has referred to the case of Muhammad Umar v, Muhammad Yousuf (PLD 1977 Lah 676), wherein a learned Single Judge has observed as follows :- but in the present case the relationship of landlord and tenant between the parties came to be regulated under the Ordinance/law including the Rent Restriction Ordinance on the 28th of May 1969 in view of the specific language of subsection (4) of section 30 of the Act, 1958 which provides that on the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3) whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship. Proviso (b) to subsection (1) only places an embargo upon the right of the landlord transferee to eject a person from the house in his possession for a period of 6 years from the date of notice under the provisions of that section. This provision is not applicable to the present case. The other contingency in which the ordinary law becomes applicable is the contravention of the provision of sec--petition 3. This contravention occurs only when the .Arrear of rent is not paid within three months from the date of receipt of notice of demand sent to him by the transferee by registered post acknowldge--ment due or when the tenant sublets or otherwise parts with the possession of the house or again where a tenant owns in the same town or City another house. The last two contingencies also do not arise in the present case. The only question is when did the relation--ship of landlord and tenant come to be regulated by the ordinary law of the land in view of the default of payment to be paid within 90 days."
20. On the basis of the above ruling, it has been vehemently urged by the learned counsel for the respondent that the effect of the finding of the two Courts below that the appellant owns a shop within the same urban area is that it amounts to a contravention within the meaning of subsection
(4) of section 30 of the Act and, therefore, the provisions of section 30 (1) (a) cannot be pressed into service with the result that the applicant was liable to pay rent at the alleged agreed rate and not at the rate on the basis of the latest assessment as provided for in the above section 30 (1) (a).
21. In my view the above contention is devoid of any force inasmuch as the liability of a tenant to pay rent to a transferee of an evacuee property is regulated by section 30(1)(a) which in my view is independent from section 30(1)(b), which. Relates to 6 years statutory protection. Furthermore the fact that a tenant of a transferred property owns a shop or a house does not in my view constitute a contravention of any provision of subsection (3) of section 30,C referred to in subsection. (4) of the :aforesaid section. The effect of owning all shop or a house by a tenant of the transferred property is that the statutory protection of 6 years cannot be availed of by such a tenant; but he remains liable to pay rent on the basis of latest assessment in terms of section 30(1) (a).--In this view of the matter the two Courts below erred in misconstruing section 30 of the Act by holding that the appellant was not liable to pay rent on the basis of the latest assessment and was liable to pay rent at the alleged agreed rate. Consequently, the finding of the two Courts below on the question of default is not sustainable, and, therefore, I set aside the same and I hold that there was no default subsisting at the time of the filing of the ejectment application in question.
5. (a) Reverting to the learned counsel for the appellant's contention that the finding of the two Court below on the question of personal require--ment is contrary to record, it may be observed that he has urged that since the respondent had not examined her sons for whose occupation she wanted --the shop in question, the above finding cannot be sustained. In support of the above contention he has referred to the case of Soofi Muhammad Yasin and others v. Dr. Major Abdul Ahad Khan (PLD 1976 Kar 1231). In the above case, it has been held by a learned Single Judge that the omission on the part of the landlord to examine his two daughters was fatal to his case. In this regard it may be observed that it has been rightly pointed out by Mr. Makhdoom A.I Khan learned counsel for the respondent that the facts of the above case are not applicable to the instant case in as much as ' in the said case the plea raised by the tenant was that the landlord's two daughters (who were also doctors by profession) had independent employments and were not willing to work with the landlord (who was also a doctor by profession). In view of the above averment of the tenant, it was observed by the Court that the two daughters of the landlord should have been examined. In this regard it may be pertinent to refer to a subsequent Karachi case, namely, Muhammad Bashir v. Vensimal and 4 others (PLD 1930 KAR 409) which inter alia it has been held that the mere fact a landlord does not examine his children in order to prove that the premises are required .For their occupation will not be fatal if .The landlord has examined - himself and his evidence is convincing. .,
(b) It was next contended by Mr. Soomro that the respondent's husband and the attorney in his cross-examination admitted the fact that one of the four sons was running his own shop and, therefore, on account of the above admission the respondent's case of personal requirement stands falsi--fied. It will be suffice to observe that both the Courts have held that the appellant was unable to bring anything on record to indicate that three of the respondent's sons had in fact any shop. Of their own or were running any such shop. Since there is no rebuttal to the statement of the respondent's husband and the attorney on the above point, the finding of the two Courts below on the question of personal requirement cannot be interfered with as it cannot be said to be perverse.
22. The learned counsel for the respondent has referred to the case of Abdul Majid v. Khalil Ahmed (PLD 1955 FC 38) and the case of Muhammad Akhlas and others v. Muhammad Ismail (PLD 1965 SC 466). In the former case it was held by the Federal Court of Pakistan that under section 100 of the C. P, C., concurrent finding of fact by the lower Courts even though may be erroneous cannot be upset by the High Court in the second' appeal provided evidence was considered by the Courts below. In the letter case Supreme Court has held that concurrent finding of fact arrived at by the trial Court and District Judge cannot be disturbed in second appeal by the High Court under section 15 of the Ordinance. It will suffice to observe that the above-cases support the contention .Of the learned counsel for the respondent. Apart from the above two cited cases there are number of authorities in which it E has been held that a concurrent finding of fact cannot be interfered with unless it is perverse or contrary to record.
23. 6, (a) Reverting to the above third contention of the learned counsel for the respondent that even if it is to be held that the statutory protection of 6 years was available to the appellant under section 30 of the Act, the ejectment orders under appeal are sustainable as admittedly 6 years period had expired by the time the first appellate Court., had maintained the ejectment order of the learned Rent Controller, it may be observed that in support of his above contention Mr. Makhdoom A.I Khan has referred to the case of Abdullah Bhai and others v. Ahmed Din (1) and the case of Mst. Amina and others v. Mehar Alam Dastgir (2). Whereas Mr. Soomro has referred to the case of Muhammad Rashid v.'Syed Mumtaz Hussain (3).
24. (1)PLD 1964 SC 106(2) PLD19785C220(3) 1980 CLC 2021
(b) Reverting to 1964 S. C., it will suffice to observe that in the above case, it was urged that the period of licence in respect of the suit shop bad not expired by the time of filing the ejectment 'proceedings. It was held by the Supreme Court that the Additional District Judge on appeal had decreed the suit on a date when the period of licence bad expired and that the land--lord had a right of possession and that it was open to the appellate Court to have decreed the suit which was premature when it was filed but the cause of action in respect, thereof had arisen during the pendency of the , suit. .
(c) Reverting to 1978 SC, it may be stated that in the latter case it was held by Supreme Court that the Rent Controller and the appellate Court in the exercise of the discretion vested in them were not precluded to allow any bona fide amendments and take note of subsequent events in order to suitably award relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and to shorten the proceedings. In the above case, ejectment proceedings were filed in respect.: of a transferred property on the ground of default in payment of rent and on account - of recon--struction in the year 1966, the case was decided by the Rent Controller in 1972 and eventually it was upheld by the High Court on 28-2-1977. It was urged by the tenant that the statutory period of protection had not expired by the time of the filing of the ejectment application.
25. In that context the Supreme Court observed as follows "Now reverting to the facts in the instant case before us, to start with the ejectment application was filed by the respondent against the peti--tioners on the grounds that they had committed default in the payment of rent, had impaired the value and utility of the premises and also because he wanted to reconstruct the shop in question. On these allegations therefore this application as laid was, competent and- could be enquired into. During the pendency of the application even the statutory period of protection against the ejectment of the petitioners under proviso (b) to subsection (1) of section 30 had also elapsed and the High Court in exercise of the discretion vested in it found that the shop in dispute was old and dilapidated one. Actually on a complaint the condition of the structure had been declared as dangerous and in that connection Municipal Committee had also launched pro--ceedings against the landlord and the tenants. In the opinion of the High Court there was overwhelming evidence available on the record to arrive at the finding that the landlord reasonably required the premises in good faith for reconstruction and that there was no justification for interference with the concurrent findings of fact recorded by the authorities below in that behalf. In this connection the Court further observed that the ejectment application was filed in the year 1966 and was eventually decided by the Rent Controller after six long years in the year 1972. If the case were to commence afresh after the 11 years of this litigation by the 28th of February, 1977 when the impugned order was passed by the High Court, the result on account of the accepted position on the merits of this issue would not be any different."
(d) Reverting to 1980 CLC it will suffice to shy that in . The above case a learned Single Judge of the Lahore High Court has held that the contention that the period of -6 years has expired during the pendency of the appeal has no force and that such contention may have force if the statutory period expires during the pendency of petition for ejectment.
(e) It will suffice to observe that in a fit case the Court may take into consideration subsequent events subsequent cause of action in order to avert multiplicity of litigation and to shorten the proceedings and to give relief F according to the changed circumstances. However; since I have concurred with the finding of the two Courts below on the question that the statutory pro--tection for the period of 6 years was not available to the appellant for the reasons given hereinabove in para. 3(c) & (d), it is not necessary to examine the above contention in more detail.
7. The upshot of the above discussion is that the concurrent finding of the two Courts below on the question of personal requirement is sustained with the result that the appeal is dismissed with no order as to costs. How--ever, I grant four months time from today to the appellant to vacate the shop in question.